Overkill Codes of Conduct

The Joint Commission ("TJC") recently broadcast as a "Sentinel Event Alert" a discussion of its standard LD 3.10, (effective 2009) which calls for a process to manage disruptive behavior. TJC followed up the next day with a broadcast email selling its book, seminar and audio conference on how to meet the standard it created. Other hospital consultants piggybacked on TJC's marketing, telling horror stories about "physician bullies" and selling "no tolerance" policies.

I have no tolerance for no tolerance. Overkill conduct codes subject medical staff members to discipline for "conduct disruptive to hospital operations", such as opposing the hospital's expansion plans at a city planning meeting, or pointing out problems with patient care. Among countless ridiculous but scary provisions in hospital codes of conduct, my favorite may be the one defining disruptive behavior as "adding to the workload of the staff"—which would include admitting a patient.

Medical staffs should be alerted to overkill conduct codes. In addition to imposing literally absurd requirements, such codes can be used to prevent physicians from competing with the hospital in any way, including being married to a cafe owner, which would fall under the code's clause blocking the medical staff member or immediate family from having an interest in an entity competing with hospital operations (its cafeteria.) Having an interest in a surgery center or imaging suite may not seem to be a "behavior" issue but might be blocked by the hospital's newly-laminated Behavior that Undermines the Mission list. Hospitals should be dinged for masking such anti-competitive schemes as necessary for "compliance."

Unprofessional conduct needs to be managed, but doing it badly creates costly errors. More than a new TJC standard is at stake. Poorly drafted codes of conduct disqualify actions for state and federal peer review protections, needlessly sacrificing legal immunity and confidentiality protections. Failing to follow existing procedures has been held to constitute malice, disqualifying the hospital and medical staff from Health Care Quality Improvement Act protection. (see In re: Peer Review Action http://www.lawlibrary.state.mn.us/archive/ctappub/0806/opa070813-0603.pdf). Using codes of conduct as a guise for economic credentialing has been successfully challenged in Baptist Health v. Murphy (189 S.W.3d 438 (Ark. S.Ct. 2005). Forcing a new range of discipline on the medical staff outside the medical staff bylaws jeopardizes medical staff self-governance.

Really want to reduce unprofessional conduct? Adopt sensible, transparent requirements in medical staff bylaws, with emphasis on assisting professionals with emotional, physical or mental problems, encouraging constructive criticism and improving substandard systems.

© 2009 Elizabeth A. Snelson, Esq.
Questions? Comments? easesq@snelsonlaw.com
Click icon below to email this article to a colleague.